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Lecture notes of 8 pages for the course Criminal Law at UoW (sexual offences)
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Sexual OffencesCore Reading.
- Jonathan Herring, Criminal Law: Texts, Cases and Materials (9th edn) pp 419-46, 470-515
Sexual Offences Act 2003
Provides for a wide range of sexual offences
We will be looking at:
- Rape
- Assault by Penetration
- Sexual Assault
- General Provisions relating to Consent
Other offences include:
- Child Sexual Offences
- Sex with an Adult Relative
- Voyeurism
- Abuse of a position of Trust
Rape - S1
(1)A person (A) commits an offence if—
- (a)he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
- (b)B does not consent to the penetration, and
- (c)A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has
taken to ascertain whether B consents.
(3) Sections 75 and 76 apply to an offence under this section.
(4)A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.
Elements of Rape
Actus Reus
Penetration - Vagina, Anus or Mouth
Penetration needs to be done with a Penis
V does not consent to the penetration
Mens Rea
The penetration needs to be intentional
D Must not reasonably believe that v consented
Actus Reus - Penetration
- Penetration needs to be carried out by the defendant’s penis
- The penis needs to penetrate a vagina, anus or mouth
- Penetration is an act that continues from entry to withdrawal - s79 (2)
- Consent can be withdrawn during penetration - Schaub (cooper) [1994]
- The slightest degree of penetration is enough to fulfil this element of the actus reus
- References to body parts include those which have been surgically constructed - s79 (3)
Actus Reus - Consent (overview)
The penetration needs to occur without consent of the victim
This does not need to be communicated to the defendant – H [2007]
Consent outlined in section 75 and 76 Sexual Offences Act 2003
S75 – Under certain circumstances, these circumstances are evidence that the victim does not consent
S76 – Under certain circumstances, these circumstances allow for a conclusive presumption that the victim does not
consent
Consent to penetrating one of the orifices does not equate consent of the others
Mens Rea (overview)
, Defendant must have the intention to penetrate with his penis
Practically, it would be difficult to see how this could be done with indirect intention OR recklessly/negligently
Defendant must not reasonably believe that the victim consented to the penetration
Did D believe that V was consenting?
Was this belief reasonable?
Mens Rea - Reasonable Belief s1 (2)
(2)Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has
taken to ascertain whether B consents.
This includes an objective element to the “reasonable belief test”
All the circumstances – includes context, actions of parties, actions of third parties, any steps to ascertain whether V
consents…
V’s dress and location should not be taken into account, although behaviour could affect D’s perception of consent
Unclear whether this includes personal characteristics
Voluntary intoxication cannot be taken into account to consider whether a belief was reasonable – Grewal [2010]
Mental disorder cannot be taken into account if it leads to an irrational belief in consent – Braham [2013]
Assault by Penetration - s2 Sexual Offences Act 2003
Assault by penetration
(1)A person (A) commits an offence if—
(a)he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else,
(b)the penetration is sexual,
(c)B does not consent to the penetration, and
(d)A does not reasonably believe that B consents.
(2)Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has
taken to ascertain whether B consents.
(3)Sections 75 and 76 apply to an offence under this section.
(4)A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment
for life.
Sexual Assault - s3 Sexual Offences Act
Sexual assault
(1)A person (A) commits an offence if—
(a)he intentionally touches another person (B),
(b)the touching is sexual,
(c)B does not consent to the touching, and
(d)A does not reasonably believe that B consents.
(2)Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has
taken to ascertain whether B consents.
(3)Sections 75 and 76 apply to an offence under this section.
Exploring Terms Used in the Sexual Offences Act 2003
The Meaning of; Sexual
S78 - penetration, touching or any other activity is sexual if a reasonable person would consider that—
(a)whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or
(b)because of its nature it may be sexual and because of its circumstances or the purpose of any person in
relation to it (or both) it is sexual
H [2005] – would a reasonable person consider that because of its nature, the act may be sexual AND
Because of the circumstances of the activity or purpose of anyone in relation to the activity, is it sexual?
Heard [2007] – the defendant does not need to intend to touch sexually, but that the touching was in fact sexual
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